Referral Terms and Conditions

IMPORTANT: PLEASE READ THESE REFERRAL TERMS AND CONDITIONS CAREFULLY AND MAINTAIN A COPY FOR YOUR RECORDS. BY SUBMITTING: (A) A CUSTOMER, OR (B) A PROSPECTIVE CUSTOMER; OR (C) ANY SIMILAR BUSINESS OPPORTUNITY OR OFFER TO ANY PIXELFIND ENTITY, OR BY CLICKING THE "ACCEPT" BUTTON, YOU ACCEPT AND AGREE TO BE BOUND BY THESE REFERRAL TERMS AND CONDITIONS, THE DOCUMENTATION, AND THE OTHER ITEMS REFERENCED HEREIN AND THEREIN (COLLECTIVELY, THE "AGREEMENT"), ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THE AGREEMENT. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THE AGREEMENT. YOU MUST ACCEPT THE AGREEMENT BEFORE YOU CAN: (A) SUBMIT A CUSTOMER, OR (B) SUBMIT A PROSPECTIVE CUSTOMER; OR (C) SUBMIT ANY SIMILAR BUSINESS OPPORTUNITY OR OFFER TO ANY PIXELFIND ENTITY; OR (D) RECEIVE ANY COMMISSIONS OR ANY PAYMENT OR CONSIDERATION OF ANY KIND FROM PIXELFIND. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN PIXELFIND IS UNWILLING AND HAS NO OBLIGATION TO PAY ANY CONSIDERATION OR ANY AMOUNTS TO YOU. THE AGREEMENT IS BETWEEN THE PIXELFIND ENTITY THAT PAYS THE COMMISSIONS WITH RESPECT TO THE APPLICABLE PIXELFIND PRODUCT ("PIXELFIND", "WE" OR "US") AND THE INDIVIDUAL OR LEGAL ENTITY THAT SUBMITS THE APPLICABLE CUSTOMER OR THAT CLICKS THE "ACCEPT" BUTTON ("COMPANY", "YOUR" OR "YOUR"). THE AGREEMENT MAY APPLY TO MULTIPLE PIXELFIND ENTITIES WITH RESPECT TO DIFFERENT PIXELFIND COMMISSION ELIGIBLE PRODUCTS PROVIDED THAT NO PIXELFIND ENTITY HAS THE RIGHT TO ENTER ANY CONTRACT ON BEHALF OF OR AS AGENT FOR ANY OTHER PIXELFIND ENTITY. IF YOU ARE PART OF OR OTHERWISE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS "COMPANY", "YOU" OR "YOUR" WILL REFER TO SUCH ENTITY.

1. DEFINITIONS: All capitalized terms defined in the Agreement have the meanings as defined herein. In addition, as used in the Agreement the following terms will be defined as set forth below:
1.1. "Affiliates" means any legal entity that a party owns, which owns the party, or which is under common ownership with the party. "Ownership" means, for the purposes of this definition, more than 50% ownership.
1.2. "Commision" means the compensation, amounts, or other consideration that is set forth in the Documentation that Pixelfind is willing to pay with respect to referrals by you of Customers who enter a Sales Agreement for the applicable Pixelfind Commission Eligible Product.
1.3. "Customer" means an end user or referral partner customer that enters the Pixelfind system through Pixelfind landing page(s) or codes associated with Company and that as a result of your referral efforts enters into a Sales Agreement with Pixelfind. You are not eligible for any payments with respect to (and the term "Customer" does not include) any person or entity: (a) that was already in Pixelfind's systems; or (b) that Pixelfind has not authorized you to solicit in the foregoing sentence; or (c) that is an existing customer of Pixelfind or its resellers or agents; or (d) that becomes a customer of Pixelfind as a result of the efforts of Pixelfind or any of its resellers or agents or any other person or entity all of the above as determined in Pixelfind's sole discretion.
1.4. "Documentation" means the written information (whether contained in, emails, Website, programs or otherwise) pertaining to the Agreement and made available by Pixelfind to you as updated or amended by Pixelfind from time to time.
1.5. "Pixelfind Entities" means Pixelfind and any licensors and suppliers providing any part of the Software or Services; and all subsidiaries, Affiliates, officers, employees, consultants, and agents of any of the foregoing.
1.6. "Commission Eligible Products" are the Pixelfind Products and Services identified in the Documentation with respect to which Pixelfind is willing to offer a Commission and, if applicable, for which Pixelfind has issued Company a specific promotional code as updated, altered or otherwise modified in Pixelfind's discretion. For the avoidance of doubt a Pixelfind Product and Service must be identified with specificity in the Documentation to be considered a Pixelfind Commission Eligible Product and any ambiguity will be resolved in favor of the item not being a Pixelfind Commission Eligible Product.
1.7. "Pixelfind Products and Services" means all products and services sold or otherwise offered by any Pixelfind Entity.
1.8. "Marks" means Pixelfind or Pixelfind licensed trademarks, logos, symbols, and names.
1.9. "Net Revenue" means revenue actually collected by Pixelfind for Commission Eligible Products from Customers but does not include any maintenance, support, setup, training, programming, clerical, consulting, or professional services fees or charges or any other miscellaneous fees or charges or any, taxes, fees, surcharges, credits, chargebacks, or other refunded or uncollected sums charged or paid with respect to Commission Eligible Products or otherwise.
1.10. "Party" means you and Pixelfind and you and Pixelfind are collectively the "Parties".
1.11. "Sales Agreement" means a written agreement between Pixelfind and a prospective Customer referred to Pixelfind under this Agreement by you.
1.12. "Website" means http://www.pixelfind.net and related Pixelfind micro-site(s), or regional or in country websites applicable to Customer or the applicable Software or Services.

2. Appointment. Pixelfind appoints you on a nonexclusive basis to solicit and refer prospective Customers to Pixelfind or its Affiliates solely for the Commission Eligible Products as set forth in the Documentation. You agree to use your best efforts to solicit and refer prospective Customers in accordance with this Agreement. Your territory is as set forth in the Documentation or if no territory is set forth in the Documentation will be worldwide. You acknowledge and agree that this appointment from Pixelfind is non-exclusive, and Pixelfind may appoint other persons and entities and may use its own personnel to market, promote and sell anything (including, but not limited to Commission Eligible Products) without liability to you or any third party. You agree that: (a) during the term of the Agreement you and your Affiliates will not, directly or indirectly, refer, solicit, sell to or encourage any person or entity to use, purchase or test any service in competition with any Pixelfind Product; and (b) during the term of the Agreement and for one year thereafter you and your Affiliates will not, directly or indirectly, refer, solicit, sell to, or encourage or cause any Customer of any Pixelfind Entity, or their Affiliates or their resellers or agents to stop, alter or reduce its use of any Pixelfind Products and Services.

3. Term. The term of the Agreement is indefinite until terminated by either Party; provided that you agree that by submitting any prospective Customer to Pixelfind the Agreement will apply in all cases.

4. Compensation & Marketing.
4.1 In the event Pixelfind enters a Sales Agreement with a prospective Customer within 2 (two) months (or such other time as set forth in the Documentation) of a referral hereunder by you and Pixelfind agrees in its sole discretion that: (i) a Customer has been validly submitted under the Agreement by you, and (ii) to accept such referral by you, and (iii) you are eligible to receive Commissions with respect to Commission Eligible Products purchased by such Customer; you will be paid as your sole consideration the compensation set forth in the Documentation. For the avoidance of doubt, Pixelfind shall have no payment obligation to Company with respect to any Pixelfind Products and Services other than the Commission Eligible Products and Company acknowledges and agrees that Pixelfind or its Affiliates may use any information provided under the Agreement to sell any Pixelfind Products and Services other than the Commission Eligible Products without liability or payment obligation to Company.
4.2 Unless otherwise set forth in the Documentation Pixelfind will make Commission payments to you within forty five (45) days after the end of the project in which such Commission is earned.
4.3 The parties acknowledge and agree that Pixelfind: (i) is under no obligation to accept a Customer submitted by you; (ii) may refuse any Customer (either in whole or in part or with respect to some but not other Commission Eligible Products) submitted by you for any reason or no reason; (iii) may terminate (whether for cause or convenience) or otherwise allow termination or expiration of any Sales Agreement; (iv) may engage in any type of business with any person or entity (including but not limited to sales of Commission Eligible Products or sales any other Pixelfind Products and Services to Customers submitted by you); and (v) may use any information provided to Pixelfind for any reason; and (vi) may take any or all of the foregoing actions without liability of any kind to you or any third party, regardless of whether you have also submitted such person or entity under the Agreement, have previously received payments under the Agreement, or otherwise. You further acknowledge and agree that Pixelfind may take any or all of the above actions or inactions in Pixelfind's sole discretion without liability or payment obligation to you and your sole and exclusive remedy in case of any of the actions or inactions by Pixelfind is to terminate the Agreement and make no further referrals to Pixelfind.

5. Pixelfind Responsibilities. Pixelfind is solely responsible for providing the Pixelfind Products and Services to Customers and for billing and collecting money from Customers for all Pixelfind Products and Services. To assist you in your activities under this Agreement, Pixelfind may, in its discretion, provide you with sales and other materials (in electronic or other form) with respect to the Pixelfind Products and Services as Pixelfind deems appropriate from time to time ("Materials"). You agree not to use any promotional materials other than the Materials or other materials approved in writing by Pixelfind to promote the Pixelfind Products and Services. Pixelfind agrees to respond to your reasonable inquiries about developments with respect to Pixelfind Products and Services offered by Pixelfind which may be useful to you in the performance of your duties under this Agreement. You acknowledge and agree that Pixelfind has the right in its sole discretion without notice and without incurring any liability of any type to you or any third party: (a) to establish the terms and conditions under which it will offer or sell Pixelfind Products and Services to any prospective Customer; or (b) to refuse to provide the Pixelfind Products and Services or terminate provision of the Pixelfind Products and Services to a Customer; (c) to set the price for all Pixelfind Products and Services and may change the prices charged to Customers for any Pixelfind Product (whether such Customer is prospective or is a Customer for which you are already receiving compensation under this Agreement); and (d) your sole and exclusive remedy in case of any of the foregoing actions or inactions by Pixelfind is to terminate the Agreement and make no further referrals to Pixelfind.

6. Your Responsibilities. You agree to bear all of your expenses with respect to this Agreement. You acknowledge, understand and agree that all Sales Agreements with Customers will be Pixelfind's standard terms and conditions as set forth from time to time on the Pixelfind website at http://www.pixelfind.net/terms_and_conditions.pxf for end user Customers and http://www.pixelfind.net/referral_terms_and_conditions.pxf for referral partner Customers and you will not provide to any person or entity any representation, warranty or commitment relative to the Pixelfind Products and Services other than as expressly set forth therein.

7. Termination and Survival. Either party may terminate the Agreement for cause upon 10 days written notice and failure of the other party to cure a breach of this Agreement (a "Termination For Cause") or at any time upon sixty days prior written notice (a "Termination For Convenience"). Upon any termination: (a) you will cease all referral efforts under the Agreement and will return or destroy all Materials and Pixelfind Confidential Information; (b) Pixelfind's payment obligations under the Agreement will immediately cease; and (c) Sections 5-12 and the last sentence of Section 2 will survive any termination of this Agreement.

8. Independent Contractor. The Parties agree that you are an independent contractor and that this Agreement in no way creates any employee/employer relationship or any partnership, agency, or other joint venture or enterprise, between the Parties and neither Party has the right or authority to bind the other Party to any obligation. Pixelfind has no control over when, where or how you perform your obligations under this Agreement.

9. Indemnity and Limit of Liability. You agree to defend, indemnify and hold Pixelfind, its Affiliates, and their respective owners, officers, directors, employees and representatives harmless from and against all claims, expenses, damages, judgments, and costs including reasonable attorney's fees, arising out of, relating to, or resulting from the negligence, breach of this agreement or violation of applicable law, rule, regulation by you or your Affiliates, or their respective owners, officers, directors, employees or representatives. EXCEPT FOR INDEMNITY AND CONFIDENTIALITY OBLIGATIONS AND VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT. IN ANY CASE, PIXELFIND'S MAXIMUM CUMULATIVE LIABILITY AND AGENT'S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF COMPENSATION DUE FOR THE MONTHLY BILLING PERIOD DURING WHICH SUCH LIABILITY ARISES.

10. Marks. Pixelfind grants you a revocable, nonexclusive license to use the Materials and Pixelfind marks in accordance with Pixelfind's Trademark Guidelines set forth at http://www.pixelfind.net/trademark_guidelines.pxf. You agree that you will not directly or indirectly: (a) obtain any right, title, or interest in any Pixelfind mark or any string identifier, whether in the form of a Universal Resource Locator (URL) or in any other form, representing or linking with any network address, such string identifier comprising in whole, comprising in part, or in any way similar to any word portions of any Pixelfind mark; or (b) employ any word portion of, or any Pixelfind marks, including without limitation using or facilitating use of such word portion in connection with any Internet search engine, any Internet website, or any Internet browser, so as to direct or re-direct communications network traffic. You acknowledge and agree that Pixelfind is the owner of all right, title and interest in and to the Products, Materials and marks and that other than as set forth in this Agreement retains all such rights.

11. Miscellaneous. You agree to comply with: (a) all national, state and local laws, rules and regulations; and (b) with the Pixelfind policies, conditions and workplace rules provided to you including Pixelfind's Confidentiality Policy set forth as Exhibit A hereto (collectively the "Policies") as such Policies may be updated from time to time in Pixelfind's sole discretion. This Agreement may be changed only by a written amendment signed by both Parties. The failure by either Party at any time to require strict performance by the other Party or to claim a breach of any provision of this Agreement will not be construed as a waiver of any subsequent breach or prejudice either Party as regards to any subsequent action. This Agreement is governed by the laws of Romania without regard to its choice of law provisions. You agree that Pixelfind may apply any amount owed by you or any of you Affiliates to Pixelfind or any of its Affiliates to offset any amount owed by Pixelfind or its Affiliates to you or any of your Affiliates. Except as set in this Agreement, no provision of this Agreement will in any way inure to the benefit of any third person (including the public, at large) so as to constitute any such person a third-party beneficiary of the Agreement or any of the terms hereof, or otherwise give rise to any cause of action in any person not a Party hereto. The parties consent to the exclusive jurisdiction and venue of the courts sitting in Craiova, Romania with respect to any dispute, controversy or claim arising out of or relating to this Agreement. In the event that any provision contained in this Agreement is held to be unenforceable by a court of competent jurisdiction, the validity, legality, or enforceability of the remainder of this Agreement will in no way be affected or impaired thereby. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter herein and no other agreement, promise or practice between the Parties will be binding on the Parties.

CONFIDENTIALITY POLICY

1. Company may have access to or receive or may be exposed to proprietary information, technical data, trade secrets or know-how of Pixelfind, its Affiliates, and their clients, suppliers, agents and customers including, but not limited to, business requirements, software, systems, marketing philosophy, objectives, methodology and strategy, competitive advantages and disadvantages, the types and/or details of products or services provided, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, or other business information, financial results, response results, technological developments, customer information, including without limitation customer names, credit card numbers or information, addresses, telephone numbers, emails, account numbers, and purchasing patterns, supplier names, addresses, and telephone numbers, and a variety of other information and materials ("Information"). Information does not include any of the foregoing items which have become publicly known and made generally available through no wrongful act of Company or any person supplied by Company or of others who were under confidentiality obligations as to the item or items involved or improvements or new versions thereof.

2. Access to Information is necessary in order that Company may perform under the Agreement and Company understands that much of the Information has been developed at a significant expense to Pixelfind or its suppliers or customers and is not generally known to third parties. Disclosure of the Information to third parties, either during or after the Term of the Agreement, would be of substantial value to potential competitors, as well as customers and prospective customers, of Pixelfind.

3. Company agrees that as between Company and Pixelfind, all such Information is, and will be considered, the exclusive property of Pixelfind, even if Company helped develop some of the Information and is and will be considered confidential and proprietary to Pixelfind. Company agrees that it will:
(a) rotect and preserve the confidential and proprietary nature of all Information;
(b) not retain, disclose, give, sell or otherwise transfer or make available, directly or indirectly, any Information to any third party (including Company's agents and contractors) for any purpose, except as expressly permitted in writing by Pixelfind;
(c) not retain, use, or make any records or copies of, the Information, except as specifically needed in order to provide the Services;
(d) limit the dissemination of the Information within its own organization to such individuals whose duties justify the need to know the Information, and then only provided that such individuals are obligated in writing to maintain the confidential and proprietary nature of the Information;
(e) return (or, at Pixelfind's request, destroy) all Information and any copies thereof (in whatever form) (i) as soon as it is no longer needed or (ii) immediately upon Pixelfind's request, and certify to Pixelfind in writing that this has been done;
(f) notify Pixelfind immediately of any loss, misplacement or unauthorized use or disclosure of Information, in whatever form; and
(g) comply with any security procedures attached to this Agreement and any other reasonable security procedures as may be prescribed by Pixelfind for protection of the Information; and
(h) mitigate, to the extent practicable, any harmful effect that is known to Company of a use or disclosure of Information by Company in violation of the requirements of this Confidentiality Policy.

4. Company will ensure and be responsible for compliance with the terms of this Confidentiality Policy by its directors, officers, employees, agents, contractors and any person supplied by or through Company or who becomes aware of the Information through any of the foregoing.

5. Company will implement and maintain at all times appropriate measures ("Information Security Measures") designed to (i) ensure the security and confidentiality of the Information, (ii) identify potential threats or hazards to the security or integrity of the Information and protect against any anticipated threats or hazards, and (iii) protect against unauthorized access to or use of the Information.

6. In the event of any actual or threatened unauthorized access to Information or breach of this Confidentiality Policy by Company, Company will at Company's expense: (a) immediately notify Pixelfind; (b) cooperate with Pixelfind to take all measures to stop or limit the access, use or damages caused thereby; (c) implement changes and safeguards to prevent further access or use; and (d) as directed by Pixelfind send notifications or communications to affected individuals or entities. The parties acknowledge that Information is unique and valuable, and that use or disclosure in breach of this policy will result in irreparable injury to Pixelfind or its clients for which monetary damages alone would not be an adequate remedy. Therefore, the parties agree that in the event of a breach or threatened breach of this policy, Pixelfind will be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages. No forbearance, failure or delay in exercising any right, power or privilege is waiver thereof, nor does any single or partial exercise thereof preclude any other or future exercise thereof, or the exercise of any other right, power or privilege.

Last update: December 06, 2010
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